Citation NR: 9632037
Decision Date: 11/12/96 Archive Date: 11/22/96
DOCKET NO. 95-26 141 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUES
1. Entitlement to service connection for a left plantar
callus.
2. Entitlement to service connection for a left knee
disability.
ATTORNEY FOR THE BOARD
Thomas A. Pluta, Counsel
INTRODUCTION
The veteran had active service from March 1952 to March 1954.
This appeal arises from a May 1995 rating action of the
Hartford, Connecticut Regional Office (RO) which denied
service connection for a left plantar callus and a left knee
disability.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in effect, that he currently suffers
from a left plantar callus and a left knee disability which
had their onset in service and for which he was treated in
service.
DECISION OF THE BOARD
The Board of Veterans’ Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp.
1995), has reviewed and considered all of the evidence and
material of record in the veteran's claims file. Based on
its review of the relevant evidence in this matter, and for
the following reasons and bases, it is the decision of the
Board that the veteran has not met the initial burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claims for service
connection for a left plantar callus and a left knee
disability are well-grounded.
FINDINGS OF FACT
1. A left plantar callus is not currently objectively
demonstrated, and as such, the claim for service connection
is not plausible.
2. A left knee disability is not currently objectively
demonstrated, and as such, the claim for service connection
is not plausible.
CONCLUSIONS OF LAW
1. The veteran has not submitted evidence of a well-grounded
claim with respect to the issue of service connection for a
left plantar callus. 38 U.S.C.A. § 5107(a) (West 1991).
2. The veteran has not submitted evidence of a well-grounded
claim with respect to the issue of service connection for a
left knee disability. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A review of the service medical records discloses that a left
plantar callus was noted on examination for entrance into
service in March 1952. The lower extremities were otherwise
normal. The feet and lower extremities were normal on
separation physical examination of March 1954, and the
examiner specifically noted that a plantar callus was not
present. The service medical records are completely negative
for complaints, findings, or diagnoses of any left knee
disability.
In his original claim for U.S. Department of Veterans Affairs
(VA) disability compensation which was received in November
1994, the veteran claimed post-service treatment for a left
knee disability at St. Raphael’s Hospital in 1957. In a
statement of January 1995 in response to a VA request for his
signed authorization for the release to the VA of pertinent
records of medical treatment, the veteran stated that the
providers of medical treatment for a left plantar callus and
a left knee disability had died; no signed medical release
forms were submitted. The record contains no post-service
medical records of treatment or evaluation of the veteran for
a left plantar callus or a left knee disability,
The threshold question to be answered in this case is whether
the veteran has presented evidence of a well-grounded claim,
that is, a claim which is plausible. If he has not presented
a well-grounded claim, his appeal must fail, and there is no
duty to assist him further in the development of his claim
because such development would be futile. 38 U.S.C.A.
§ 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As
will be explained below, we find that his claims are not
well-grounded.
Under the applicable criteria, a veteran who served during a
period of war is presumed in sound condition except for
defects noted when examined and accepted for service.
38 U.S.C.A. § 1111 (West 1991). Service connection may be
granted for a disability resulting from disease or injury
incurred in or aggravated by wartime service. 38 U.S.C.A.
§ 1110 (West 1991). Aggravation may not be conceded where
the disability underwent no increase in severity during
service on the basis of all the evidence of record pertaining
to the manifestations of the disability prior to, during, and
subsequent to service. 38 U.S.C.A. § 1153 (West 1991);
38 C.F.R. § 3.306(b) (1995). For the showing of chronic
disease in service, there is required a combination of
manifestations sufficient to identify the disease entity, and
sufficient observation to establish chronicity at the time,
as distinguished from merely isolated findings or a diagnosis
including the word “chronic.” Continuity of symptomatology
is required where the condition noted during service is not,
in fact, shown to be chronic, or where the diagnosis of
chronicity may be legitimately questioned. When the fact of
chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support
the claim. 38 C.F.R. § 3.303(b) (1995).
The U.S. Court of Veterans Appeals has held that Congress
specifically limited entitlement for a service-connected
disease to cases where such incidents had resulted in a
disability; in the absence of proof of a present disability,
there can be no valid claim. Brammer v. Derwinski, 2
Vet.App. 223 (1992). In this case, a left plantar callus was
noted on examination for entrance into service, but it was
specifically noted on examination for separation from service
that no such disorder currently existed. No left knee
disability was ever noted in the service medical records, and
the post-service record is completely negative for medical
findings or diagnoses of any left plantar callus or left knee
disability. Moreover, the veteran has specifically denied
the availability of medical records which would show post-
service treatment for the latter claimed disabilities. On
that factual record, the Board concludes that the veteran has
not met the initial burden of presenting evidence of well-
grounded claims imposed by 38 U.S.C.A. § 5107(a), in that a
left plantar callus and a left knee disability are not
currently objectively demonstrated. Because of the absence
of any evidence of a current disability, the claims are not
plausible, and therefore are not well-grounded. Rabideau v.
Derwinski,
2 Vet.App. 141 (1992). In the absence of well-grounded
claims, there is no duty to assist the veteran further in the
development of the claims. Grottveit v. Brown,
5 Vet.App. 91 (1993). As the claims are not well-grounded,
the appeals with respect to the issues of service connection
for a left plantar callus and a left knee disability are
denied.
ORDER
Evidence of well-grounded claims not having been submitted
with respect to the issues of service connection for a left
plantar callus and a left knee disability, the appeals are
denied.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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